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TMI Blog2003 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... gently and placed the record before us to support the allegation in the show cause notice that there has been suppression of the fact and that dextrose was not mentioned in the classification list 7/82. In the absence of production of such record, the burden cast on the Revenue to establish suppression of fact is not discharged. Consequently, it will not only be unfair and unsafe but also illegal to infer that there was suppression of fact. For these reasons, we are unable to approve the view taken by the Collector as well as the CEGAT that there has been such a suppression of material fact. Unable to uphold the finding that proviso to Section 11-A (1) of the Central Excise Act is attracted. The order under challenge is set aside. The demand, insofar as it relates to the extended period, is also set aside. However, the authorities will be at liberty to raise a fresh demand of excise duty falling within the period of limitation under Section 11-A of the Act. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter stood thus, the Principal Collector of Customs and Central Excise suo motu initiated proceedings and passed an order under Section 35-E (2) of the Central Excise Act. The proceedings noted that the statutory audit report which pointed out that from the label to the Darzamol Injection, in addition to Metronidazole listed in the Schedule, Dextrose had also been used which was not one of the ingredients specified in the Notification No. 116/69 and, therefore, grant of exemption was not in order. The said Collector directed the Assistant Collector to apply to the Collector, Central Excise (Appeals) for determination of the issue involved in granting exemption to Darzamol Injection I.V. under Notification No.116/69, dated 3-5-1969. On an appeal filed pursuant to the said direction, the Collector of Central Excise (Appeals), Madras, by his order dated October 23, 1986, set aside the order of the Assistant Collector, dated May 23, 1985, and directed that adjudication be made afresh after receipt of necessary report from the Chief Chemist, C.H.C.L., New Delhi or Central Drug Laboratory. 5.It is stated that, in the meanwhile, there was re-allocation of jurisdiction of work. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee filed Appeal No. E/1329/89-C before the CEGAT. This appeal and the appeal arising out of the show-cause proceedings, being Appeal No.E/331/88-C, were disposed of by common order dated December 2, 1993, which is the subject matter of these appeals. 9.Insofar as the appeal arising out of the order of the CEGAT passed in Appeal No. 1329/89 is concerned, it must be pointed out that there has been no adjudication of the grievance of the appellant-assessee. The CEGAT did not advert to the question whether the Collector (Appeals) had jurisdiction to entertain the appeal or not. We are, therefore, of the view that the order of the CEGAT under challenge, insofar as it relates to Appeal No. 1329/89 is concerned, is liable to be set aside and, we, accordingly, do so. We remit that appeal (No. E/1329/89-C) to the CEGAT for fresh disposal in accordance with law, after giving opportunity to the parties of being heard. 10.Insofar as the appeal arising out of the show cause proceedings is concerned, the main thrust of the argument of the appellant has been with regard to invoking of proviso to Section 11A(1) of the Central Excise Act. But before we deal with that contention, we deem it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient or ingredients specified in the Schedule. The effect of this notification with regard to the drug in question, namely, Dextrose which is not specified in the Schedule, would be that if as an ingredient it is pharmaceutical necessity and therapeutically inert, it would satisfy the requirement of the exemption and, consequently, Metronidazole, which is one of the scheduled drugs, would be entitled to exemption. But, if dextrose does not have any of those properties above stated, then it being one of the ingredients of Metronidazole the exemption under the notification will not be available. 13.In view of the technical report of the Drugs Controller of India confirming the view of the Drugs Controller, Tamil Nadu that "Dextrose in Darzamole Injection is not a pharmaceutical necessity and Dextrose cannot be considered as therapeutically inert, we do not think that the assessee has any case to place before us in support of the claim for exemption. In this view of the matter, withdrawal of exemption by the Collector as confirmed by the CEGAT deserves to be confirmed and we, accordingly, do so. 14.The main point that remains to be considered is whether the CEGAT erred in confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty for an extended period of five years is sought to be justified on the ground of suppression of fact in the classification list 7/82 on the allegation that Dextrose as one of the ingredients was not disclosed. 17.The assessee has placed before us copies of the classification lists, not of 1982 but of a subsequent period, to show that in column (3) under the heading "Name of specified ingredient(s) used" Metronidazole is mentioned, and under columns (4) and (5) under the heading of "other ingredients used", dextrose, water for injection and water for washing were indicated as pharmaceutical necessity for adjustment of isotonicity, diluent and washing of bottles respectively. Inasmuch as the material placed by the assessee before us does not relate to the classification list in question, namely 7/82, and as the Revenue is alleging that there has been suppression of fact, the burden is on the Revenue to show, by producing the actual classification list filed by the assessee, that there is no mention of 'dextrose' under column (4) and there has been suppression of fact. The original records received from the authorities which were placed before us did not contain the said classific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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